Official Opinion 97-11

March 28, 1997

To:

State Superintendent of Schools

Re:

The State Board of Education has the authority to provide for exemption of students with disabilities from the graduation assessments. In addition, pursuant to a State Board rule, local school systems may modify the administration of the test to accommodate students with disabilities.

You have asked for my opinion regarding the authority of the State Board of Education ("State Board") to exempt students with disabilities from the test requirement for graduation found in O.C.G.A. § 20-2-281. You have also asked whether modifications to the test are allowed. The State Board may provide for such exemption and the administration of the test may be modified by local officials pursuant to State Board rules.

Official Code of Georgia Annotated § 20-2-281(a) directs the State Board to adopt a student assessment program, including a "curriculum-based assessment [which] shall be administered in grade 11 for graduation purposes." Subsection (c) provides that:

The State Board of Education shall have the authority to condition the awarding of a high school diploma to a student upon achievement of satisfactory scores on instruments or tests adopted and administered by the state board pursuant to subsection (a) of this Code section. The state board is authorized and directed

to adopt regulations providing that any disabled child, as defined by the provisions of this article, shall be afforded opportunities to take any test adopted by the state board as a condition for the awarding of a high school diploma. Said regulations shall further provide for appropriate accommodations in the administration of such test. Said regulations shall further provide for the awarding of a special education diploma to any disabled student who is lawfully assigned to a special education program and who does not achieve a passing score on said test or who has not completed all of the requirements for a high school diploma but who has nevertheless completed his or her Individualized Education Program.

O.C.G.A. § 20-2-281(c) (emphasis added).

The above Code Section clearly gives considerable discretion to the State Board to adopt whatever assessment instrument it desires for use in grade eleven "for graduation purposes" and to decide what performance is satisfactory on that instrument and what effect it will have on graduation eligibility. Although the statute contemplates that the State Board may condition graduation on the passing of the test, it does not require the State Board to do so. Instead of using language like "a student who has not achieved a passing score is not eligible to receive a diploma," the General Assembly has said the State Board "shall have the authority to condition the awarding of a high school diploma." The implication is clear that the State Board has the discretion whether to place that condition on graduation. This construction is consistent with the rule of construction that words in a statute be given a reasonable and sensible meaning. See Mayor of Hapeville v. Anderson, 246 Ga. 786 (1980).

The State Board also has the discretion to adopt regulations for allowing "appropriate accommodations" in the administration of the assessment instrument to students who are being educated pursuant to an Individualized Education Program. In response to its statutory authorization, the State Board has adopted Rule 160-3-1-.07 which requires in Subsection (2)(e) that, as a condition for graduation, students pass an English language arts test, mathematics test, writing test, social studies test, science test and basic skills tests. The Rule also provides for modifications in administration of the various tests for

students with disabilities. Those modifications are granted by the local school system on an ad hoc basis taking into account the student's documented disability. See Rule 160-3-1-.07(2)(h)(1).

The State Board has chosen, as a policy matter, to require that students pass the designated tests before receiving a diploma. Students who receive educational services pursuant to the IDEA who cannot pass the test may receive a special education diploma. O.C.G.A. § 20-2-281(c). The Board is not required by statute to do more than provide for the administration of a "curriculum-based assessment . . . in grade 11 for graduation purposes." O.C.G.A. § 20-2-281(a). It has chosen to condition graduation on the passing of these tests, but it has the discretion to adopt a rule which does not make that provision. See O.C.G.A. § 20-2-281(c).

The State Board has provided by regulation for waiver of its own rules. See Rule 160-1-3-.02. Because passing the tests is a condition on graduation imposed by rule, not by statute, the students may apply to the State Board for waiver of the Rule for an individual case or the State Board may redesign the Rule to provide for partial or total exemption of students with disabilities from the testing requirement for graduation. It may even decide to use a different test for students with disabilities.

You have also asked if modification of the tests is possible if a student with disabilities cannot be exempt. Under the current State Board rules the assessment may be modified for students with disabilities. The question of what modification is appropriate is a decision that is made by local school systems. See Rule 160-3-1-.07(2)(h). Local systems may also exempt a student from the writing portion of the graduation assessment if that student has "no means of written communication sufficient to complete" it due to a "severe physical handicap disability." A student thus exempt is still eligible for a diploma. Id.

Therefore, it is my official opinion that the State Board of Education has the authority to provide for exemption of

students with disabilities from the graduation assessments. In addition, pursuant to a State Board rule, local school systems may modify the administration of the test to accommodate students with disabilities and may exempt students with severe physical disabilities (such that they cannot communicate) from the writing portion of the assessment.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General

Students with disabilities include those who are eligible for services under the federal Individuals with Disabilities Education Act and State Board Rule 160-4-7-.01, and those who are classified as disabled under Section 504 of the 1973 Rehabilitation Act.